Citation Nr: 0303218
Decision Date: 02/25/03 Archive Date: 03/05/03
DOCKET NO. 01-01 923 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to a total rating for compensation purposes based
on individual unemployability due to service-connected
disorders.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
ATTORNEY FOR THE BOARD
M. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from October 1971 to
October 1973.
This case comes before the Board of Veterans' Appeals (Board)
from a rating decision rendered in August 2000 by the San
Juan, Puerto Rico, Regional Office (RO) of the Department of
Veterans Affairs (VA).
FINDINGS OF FACT
1. Service connection has been established for a low back
disorder characterized as low back strain, chronic; herniated
nucleus pulposus with lateralization at L4-L5; clinical right
L4, left L5-S1 lumbar radiculopathy with myositis. This
disorder is rated as 40 percent disabling, and is the
veteran's only service-connected disorder.
2. The veteran's service-connected disorder does not render
him unable to obtain and retain substantially gainful
employment.
CONCLUSION OF LAW
The criteria for the award of TDIU benefits are not met.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 3.340,
3.341, 4.16 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to assist
There was a significant change in the law during the pendency
of this appeal. On November 9, 2000, the President signed
into law the Veterans Claims Assistance Act of 2000 (VCAA),
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2002); see
66 Fed. Reg. 45,620-45,632 (Aug. 29, 2001) (to be codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). This law
eliminated the concept of a well-grounded claim, redefined
the obligations of VA with respect to the duty to assist, and
imposed on VA certain notification requirements. The final
regulations implementing the VCAA were published on August
29, 2001, and they apply to most claims for benefits received
by VA on or after November 9, 2000, as well as any claim not
decided as of that date, such as the one in the present case.
66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (to be codified
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a)).
First, VA has a duty to notify the veteran of any information
and evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102 and 5103 (West Supp. 2002); 66 Fed. Reg.
45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(b)). There is no issue in this case as to providing
an appropriate application form, or as to completeness of the
application. In the circumstances of this case, the veteran
has been advised of the applicable laws and regulations, and
of the evidence needed to substantiate his claim for TDIU
benefits, by a statement of the case and a supplemental
statement of the case. The Board finds that he was advised
as to what evidence was needed to establish entitlement to
these benefits, and the applicable statutory and regulatory
criteria. See Quartuccio v. Principi, 16 Vet. App. 183
(2002). In addition, he was advised of both his and VA's
obligations under the VCAA by means of a letter from the RO
in February 2002.
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A (West Supp. 2002); 66 Fed. Reg. 45,630-45,631 (Aug.
29, 2001) (to be codified at 38 C.F.R. § 3.159(c)). This
duty has been satisfied. In particular, it is noted that
records of any and all treatment cited by the veteran have
been sought by VA; there is no relevant evidence that has not
been associated with his claims folder.
III. Entitlement to TDIU benefits
The veteran contends, essentially, that his service-connected
disorder renders him unemployable; that is, that he is unable
to obtain and maintain a substantially gainful occupation as
a result of this disability. Under the provisions of
38 C.F.R. § 4.16(a) (2002), total disability ratings for
compensation may be assigned, where the schedular rating is
less than total, when the disabled person is unable to secure
or follow a substantially gainful occupation as a result of
service-connected disabilities, provided that, if there is
only one such disability, this disability is rated at least
60 percent disabling, and that, if there are two or more
disabilities, they are rated on a combined basis as at least
70 percent disabling, with one disability rated at least 40
percent disabling.
The veteran does not satisfy the requirements of 38 C.F.R.
§ 4.16(a); his sole service-connected disorder, which is a
low back disability, is currently rated as 40 percent
disabling. The fact that this regulatory standard is not
met, however, does not mean that TDIU benefits cannot be
awarded; under 38 C.F.R. § 3.321(b)(1), benefits such as TDIU
compensation can be assigned when it is shown that the
percentage ratings assigned for service-connected
disabilities present such an exceptional or unusual
disability picture, with such related factors as marked
interference with employment or frequent periods of
hospitalization, as to render impractical the application of
the regular schedular standards.
Nonetheless, the Board finds that the award of TDIU benefits
is not appropriate in this case. While the veteran's low
back disorder may preclude him from some areas of employment,
and in particular those areas requiring significant physical
activity, it is not shown that this disorder, in and of
itself, is of such severity as to preclude him from obtaining
and maintaining substantially gainful employment. It must be
noted that the 40 percent rating currently assigned for this
disorder is not even the maximum schedular rating that is
available; under Diagnostic Code 5293, which is the
diagnostic standard by which his low back disorder has been
evaluated by VA, a 60 percent rating can be assigned.
38 C.F.R. § 4.71a, Diagnostic Code 5293 (to include as
revised effective August 30, 2002). The fact that he is not
currently in receipt of the maximum schedular rating for his
one service-connected disability renders immaterial the
question of whether TDIU benefits can be awarded on an
"extra-schedular" basis under 38 C.F.R. § 3.321(b)(1).
The Board also notes that the medical evidence does not
support the veteran's claim. While a private physician
indicated in March 2002 that the veteran was unable to work,
it must be pointed out that this physician prefaced that
comment by a list of five disorders, only one of which
(lumbosacral pain caused by lumbosacral herniated nucleus
pulposus) has been service connected.
In addition, while the veteran has noted that he has been
granted disability benefits by the Social Security
Administration, it must also be noted that the decision
rendered by Social Security (a copy of which was associated
with the veteran's claims folder pursuant to a prior claim
for TDIU benefits) cites various disabilities, such as mental
impairment, as the basis for its finding of disability.
Accordingly, the fact that the Social Security Administration
has deemed him disabled is of minimal probative value in
determining whether TDIU benefits should be granted by VA,
and does not serve, in and of itself or in conjunction with
the rest of the evidentiary record, to persuade the Board
that the veteran is precluded from all forms of employment,
to include those sedentary in nature.
In brief, the Board finds that the preponderance of the
evidence is against the veteran's claim for TDIU benefits.
That claim, therefore, fails.
ORDER
Entitlement to TDIU benefits is denied.
____________________________________________
C. P. RUSSELL
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.